Employers have a duty to accommodate their employees. In Ontario there is legislative recognition of this duty under s.11(2), 17(2) and 24(2). The duty as stated in the Syndicat case is intended to “ensure that an employee who is able to work can do so” and that individuals who are “otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”.

The duty to accommodate however is not absolute. It is subject to undue hardship on the part of the employer. There will be instances where an employer’s reasonable efforts at accommodation fail to allow an employee to work, given an employee’s disability. Any further accommodation may potentially lead to undue hardship for an employer. In these cases, the duty to accommodate does not prevent the employer from terminating an employee who can no longer perform their work functions. To avoid a termination being deemed as discrimination however, the work functions must be shown to be bona fide occupational qualifications.

The seminal case which created a 3-part common law test to determine whether a discriminatory practice or standard is a bona fide occupational requirement was British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union [1999] 3 S.C.R. First, it must be established that the alleged discriminatory standard was rationally connected to the performance of the job. Second, it must be shown that the standard was made honestly and in good faith belief that it was necessary to fulfil work-related purposes. Lastly, the standard must be shown to be reasonably necessary to the accomplishment of work-related purposes and it must be shown that it is impossible to accommodate other employees with similar characteristics of the claimant, without undue hardship. If the employer can justify the alleged discriminatory standard on a balance of probabilities in accordance with the three-part test, the standard will be a BFOR.

If you are an employer seeking to accommodate or require advice on what your organizations obligations are in relation to your employees, contact our office at 416-921-7997. Furthermore, if you are an employee that has had difficulty seeking reasonable accommodations from your employer, our office can help you advance your discrimination and human rights claim.